Montana Mining Co. v. St. Louis Mining & Milling Co., 23 Mont. 311

Montana Mining Co. v. St. Louis Mining & Milling Co.

23 Mont. 311 | Mont. | 1899

MR. CHIEF JUSTICE BRANTLY,

after stating the case, delivered the opinion of the Court.

1. Defendants contend that the judgment of the district court is erroneous, m that the action for injunction instituted by the defendant corporation in the circuit court of the United States, wherein the undertaking in question was given, was merely ancillary to an action at law then pending in the same court, and not yet determined, the object of which is to settle a controversy between the plaintiff and defendant corporations as to the title to the mining property involved; that the purpose of the injunction suit was to preserve the property pending the determination of the question of the ownership of it, and that the covenant in the undertaking has not been broken, because the circuit court has never finally deter*317mined this' question adversely to the defendant corporation; and therefore that it was not entitled to have the injunction issued. They argue that, if the judgment is sustained, and hereafter, upon a termination of the suit at law in the circuit court, it be finally adjudged that the defendant corporation is the owner of the property, it will be demonstrated that they have been compelled to pay damages for which they should not in any event be held liable; therefore the suit cannot be maintained until the suit at law is finally determined adversely to the defendant corporation. To sustain this contention they cite Palmer v. Foley, 71 N. Y. 106; Clark v. Clayton, 61 Cal. 634; Dougherty v. Dore, 63 Cal. 170; Creek v. McManus, 13 Mont. 152, 32 Pac. 675; Miles v. Edwards, 6 Mont. 180, 9 Pac. 814; Bein v. Heath, 12 How. (U. S.) 168; High on Injunctions, Secs. 1640, 1656; Jones v. Ross, 48 Kan. 474, 29 Pac. 680; Brown v. Galena M. & Smelting Co., 32 Kan. 528, 4 Pac. 1016; and Stewart v. Miller, 1 Mont. 301. Attention is also called to the procedure in the United States courts, under which legal and equitable relief cannot be had in the same action, but parties desiring extraordinary equitable relief in aid of an action at law must bring separate suits for that purpose, addressed to the equity side of the court. That this is so, however, they say, in no wise changes the rule that the main controversy must be finally determined before a suit can be maintained upon the undertaking. Conceding the law to be as they claim, this position is not tenable, under the pleadings in this case, for the reason that the affirmative matter set up in the answer falls far short of showing a case in which the rule can apply. It is alleged in the answer that a suit was pending in the circuit court involving the title to the .property in controversy, and that it is still pending; but there is no suggestion that the plaintiffs in this case, or any of them, are in any wise interested in the event of it, or that they are parties to it. It is not even averred that any of the defendants are interested in it as parties or otherwise. It is alleged in the complaint, and not denied in the answer, that the injunction suit has been finally determined. No matter what *318may be the condition of things with reference to the title and the litigation.over it, nothing is stated in this regard in this case to show why this action should not proceed. The same may be said as to the action now pending in this Court on appeal. Nothing is alleged in the answer touching this to show that-the defendants are interested in it. And, if there were, it would not aid the defendants, because the plaintiffs are actors therein.

2. The defendants argue, also, that the judgment was improperly granted, because it was discretionary with the circuit court to allow a suit to be brought upon an undertaking entered into under an order made by it, and that, as no order was made allowing-this suit to be brought in the state court, it is premature. In other words, the plaintiffs may not invoke the jurisdiction of the state court, or proceed at law upon the undertaking, until they are authorized by an order of the federal court to do so.

It was held in this case by this Court (19 Mont. 313, 48 Pac. 305) that the state court has jurisdiction; conceding, for the sake of argument, that the federal court could award or refuse damages in finally disposing of the injunction proceeding. That court made a final disposition of the case by entering a judgment of dismissal, and awarding costs against the plaintiff therein. This was tantamount to a direction to the defendants to go for relief to the tribunal of their choice.

Judgment on the pleadings is proper where the complaint is sufficient, and none of its material allegations are denied, and no affirmative matter alleged to defeat the action. (City and County of San Francisco v. Staude, 92 Cal. 560, 28 Pac. 778; Power v. Gum, 6 Mont. 5, 9 Pac. 575.)

The district court heard proof to determine the amount of damages. This was not necessary. (Sections 754, 1020, Code of Civil Procedure.)

Pet the judgment be affirmed.

Affirmed.